The statute of
limitation for a doctor to seek monetary damages against a hospital for
wrongfully suspending his privileges was equitably tolled during the period he
was seeking reinstatement of the privileges through a writ proceeding, the
Court of Appeal for this district held yesterday.

The
opinion, by Los Angeles Superior Court Judge Virginia Keeny, sitting on
assignment, was not certified for publication. It reverses a determination by
then-Los Angeles Superior Court Judge Michelle R. Rosenblatt (now a private
judge) that an action by Dr. George Rappard, a radiologist, was time-barred.

Rappard
in 2008 sought a writ of mandate against Providence Saint Joseph Medical
Center, a hospital in Burbank, and others, to compel reinstatement of his
privileges relating to neurointerventional radiology. On Nov. 9, 2009, Judge
James Chalfant observed that the petition appeared “to be meritorious,” but
denied it as moot inasmuch as the privileges had been restored.

The
radiologist filed his action for damages on April 12, 2010--67 days after
expiration of the two-year statute of limitation, in the absence of a tolling.

Rosenblatt
Explains Ruling

In
granting summary judgment in favor of the hospital and the contractor that
evaluates physicians, Rosenblatt said that Rappard “has not raised a triable
issue of fact concerning the application of equitable tolling,” declaring that
“[h]is argument simplifies the mandate proceeding and wholly fails to address
the elements necessary for the application of this principle.”

She
said a review of Chalfant’s ruling shows that allegations put forth in seeking
a writ “were more limited than what has been alleged in this case.” Rosenblatt
also observed that Rappard “had time, within the limitations period, after the
November 2009 dismissal of his mandate action, to file a timely complaint.”

In
reversing, Keeny wrote that the “doctrine of equitable tolling suspends or
extends the statute of limitations for a cause of action while the plaintiff
pursues a separate legal remedy” and said the requirements are “a showing of
(1) timely notice to the defendant by filing of the first claim; (2) lack of
prejudice to the defendant; and (3) reasonable and good faith conduct by the
plaintiff.”

The
acting justice found all elements satisfied.

Delay Not Germane

“Respondents
miss the mark…when they focus on whether Rappard acted in good faith when he
waited five months after denial of the writ petition and two months after the
running of the statute of limitations to initiate the damages suit,” she said,
pointing out:

“The
good faith inquiry examines primarily whether Rappard’s motivation in filing
the first action was reasonable. In the instant case, it was completely
appropriate for Rappard to pursue the writ of mandamus action, as it provided
alternative relief which could have remedied or lessened his damages by having
his privileges reinstated. Pursuit of a writ proceeding benefited the
courts, as the writ could reduce the costs associated with duplicative
filings….Moreover, the law with respect to exhausting mandamus relief was
sufficiently complex at the time that a doctor in Rappard’s position could
reasonably conclude that he had to file a mandamus action in order to preserve
his right later to bring a damages action.”

Keeny
rejected the argument that under case law, equitable tolling cannot be invoked
where successive actions are brought in the same court. She said that cases
taking that position do not involve an action at law following a proceeding in
mandate.

In Myers
v. County of Orange (1970) 6 Cal.App.3d 626, the court applied equitable
tolling where an action for damages came on the heels of an action seeking writ
relief. She said:

“We
agree with Myers that equitable tolling can be invoked by a plaintiff
who reasonably seeks one remedy by writ petition and later seeks damages as
part of a civil suit, even if ultimately brought in the same court. The
pursuit of alternative remedies which could limit damages and reduce the
consumption of time in the trial courts fully meets the policy goals
undergirding equitable tolling.”